Independent counsel investigations.

• Author: Godes, Niles L.
• Position: Thirteenth Survey of White Collar Crime

1. INTRODUCTION

   The Independent Counsel statute was enacted during the post-Watergate era as a safeguard against high-level corruption and abuse of the public trust. The statute has since become one of the most controversial political reform laws of modern times, embraced by whichever political party wants to retake the White House, and criticized by those against whom its investigatory powers are used. Heralded by some as a necessary check against Executive Branch conflict of interest, Independent Counsel investigations are routinely attacked by others for their cost, scope, and potential for political abuse.

   Section II of this Article describes the background of the Independent Counsel statute and the events that led to its enactment. Section In describes the statute's legislative history, including changes made during its periodic reauthorizations. Section IV provides a detailed statutory analysis. Section V briefly discusses Morrison v. Olson, in which the Supreme Court upheld the constitutionality of the statute. Section VI provides information about the scope, cost and number of Independent Counsel investigations. Finally, Section VII discusses various proposals for statutory reform.

2. BACKGROUND

   I was appalled at this senseless, illegal action, and I was shocked to

   learn that employees of the Re-Election Committee were apparently among

   those guilty. I immediately ordered an investigation by appropriate

   Government authorities.... I personally assumed the responsibility for

   coordinating intensive new inquiries into the matter, and I personally

   ordered those conducting the investigations to get all the facts and

   to report them directly to me....(1)

   President Richard M. Nixon, in his April 30, 1973 speech to the nation. sought to reassure the public that the government's inquiry to the Watergate break-in and subsequent affairs was being conducted properly. The President had earlier that day announced the resignations of Attorney General Richard Kleindienst, Counsel to the President John Dean, and Presidential aides John Ehrlichman and H.R. Haldeman.(2)

   Nixon then appointed Elliot Richardson as Attorney General.(3) The Senate confirmed Richardson, but only after extracting a promise that Richardson would appoint a special prosecutor-removable only for "overwhelming evidence of cause"(4) to investigate alleged Watergate wrongdoing.(5) Nixon also agreed that Richardson could independently appoint such a prosecutor.(6) Richardson then chose Archibald Cox, Professor and Dean of Harvard Law School, as the Watergate special prosecutor.(7)

   Cox's investigation quickly angered the White House, culminating with Cox's decision to subpoena the White House audio tapes.(8) The President ordered Richardson to fire Cox; Richardson held to his word to support a special prosecutor and instead resigned.(9) Nixon next fired Deputy Attorney General William Ruckelshaus when Ruckelshaus refused to carry out the President's directive.(10) It was finally left to Solicitor General Robert Bork, as Acting Attorney General, to fire Cox.(11)

   Nixon then nominated Senator William Saxbe (R-Ohio) as Attorney General. and Bork appointed Leon Jaworski, a Texas attorney, as the new Special Prosecutor.(12) Under considerable pressure from Congress, Acting Attorney General Bork had issued regulations giving the Special Prosecutor plenary authority to investigate "all offenses arising out of the 1972 Presidential Election for which the Special Prosecutor deems it necessary ...."(13) In return, the President agreed that he would not "exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit the independence that he is hereby given, the Special Prosecutor will not be removed from his duties except for extraordinary improprieties ...."(14) The Supreme Court relied in part on Bork's regulations and the Administration's pledges when it ultimately upheld Jaworski's subpoena of Nixon's audio tapes.(15)

   The "Saturday Night Massacre" firings of Richardson, Ruckelshaus, and Cox, and the subsequent steps taken to ensure an objective investigation of Watergate set the stage for enactment of the Independent Counsel Statute. Congress became convinced that when the Executive Branch controlled investigations of itself, there was simply too great a temptation to allow subjectivity and self-interest to interfere with the need for truth and justice.

3. LEGISLATIVE HISTORY

   In the aftermath of Watergate, the Senate Judiciary Committee, Subcommittee on Separation of Powers, held hearings during the 93d Congress (1974) examining legislation intended to prevent future Watergate-type conflicts of interest and to ensure independent administration of justice.(16) Senator Sam Ervin (D-N.C.) introduced S. 2803, which would have established the Department of Justice ("DOJ") as an independent agency.(17) Senator Alan Cranston (D-Cal.) introduced S. 2978, which would have established a commission to study the need for a permanent, independent mechanism to investigate offenses committed by high-ranking federal officials.(18) Although neither bill was enacted, they set the stage for S. 495, the Watergate Reorganization and Reform Act of 1975, which would have created a permanent independent special prosecutor.(19) This 1975 legislation, reported out of the full committee, did not provide for a permanent office for a special prosecutor, but instead created a process through which the Attorney General could petition the United States Court of Appeals for the District of Columbia Circuit for the appointment of a temporary special prosecutor under certain circumstances.(20) Like its predecessors, S. 495 was not enacted, but built momentum for subsequent special prosecutor legislation.

   Finally, the Ethics in Government Act of 1978 was introduced in the 95th Congress.(21) This Act was an omnibus package of governmental reforms, including requirements for financial disclosure by each branch of the federal government, establishment of the Office of Government Ethics, and other reform provisions.(22) Most notably, this legislation provided for a temporary special prosecutor to be appointed by a division of the United States Court of Appeals for the District of Columbia Circuit upon application by the Attorney General.(23) The Ethics in Government Act, now known as the Independent Counsel statute, was approved by Congress and signed into law by President Carter in October 1978.(24) The Ethics in Government Act has undergone numerous amendments. In 1982, as part of its statutorily required reconsideration, Congress amended the statute by (1) lowering the threshold for removal of a special prosecutor from "extraordinary impropriety" to "good cause;"(25) (2) eliminating mid-level Executive Branch officials as covered persons (thereby reducing the number of covered persons from 120 to 70);(26) and (3) adjusting the statute's triggering mechanism to allow the Attorney General to weigh the specificity and credibility of evidence before conducting a preliminary investigation.(27) The 1982 amendments also changed the name of special prosecutor to "Independent Counsel"(28) and added a "catch-all" provision authorizing the Attorney General to apply for an Independent Counsel to investigate any officials or citizens for whom a routine DOJ investigation might result in a conflict of interest.(29) On January 3, 1983, President Reagan signed into law the reauthorization bill incorporating these and other changes. The Independent Counsel statute was amended a second time in 1987, after it had been in operation for ten years.(30) Congress' chief concern was DOJ's implementation of the law,(31) and the substantive changes made in 1987 focused primarily on DOJ's responsibilities and its implementation. These changes clarified that a preliminary investigation is to be conducted if a covered person "may have violated" the law instead of the higher threshold of when a covered person "has committed" a federal crime,(32) and disallowed the Attorney General from weighing "state-of-mind" evidence before commencing a preliminary investigation.(33) In addition, the amendments clarified that the Attorney General was to consider "only the specificity of the information received and the credibility of the source of that information" when deciding whether to commence a preliminary investigation.(34) The 1987 amendments reduced the Attorney General's discretion in commencing and conducting the early phases of an Independent Counsel investigation, while adding new accountability measures to the statute.(35)

   Congress allowed the Independent Counsel statute to lapse in 1992 amid election year politics, the increasingly controversial Iran-Contra investigation, and an unsympathetic Attorney General.(36) However, Congress renewed the statute in 1994 by passing the Independent Counsel Reauthorization Act of 1994.(37) This reauthorizing legislation, like its predecessors, sought to address the perceived statutory deficiencies. The 1994 changes included: (1) the requirement that an Independent Counsel appoint a chief financial officer to oversee expenditures;(38) (2) the requirement that expenditures be reviewed by the General Accounting Office ("GAO");(39) and (3) the lowering of the threshold for invoking the statute to investigate Members of Congress from a "conflict of interest" standard to a showing that an investigation would "be in the public interest."(40) While there have been other proposals to reform the Independent Counsel statute since 1994,(41) no further legislation has been enacted as of March 1998. However, the criticism of the Independent Counsel statute has continued unabated,(42) and there have been suggestions that Congress A will reconsider the statute--which will expire on June 30, 1999--in 1998.(43)

4. STATUTORY ANALYSIS

   The nine sections of the Independent Counsel statute, 28 U.S.C. [subsections] 591-599, provide the body of law governing investigations...